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TMI Blog2019 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... y declaring its chemical name as "{6R-(6a, 7B)} -7- [{2-Amino 4 - Thiazolyl (Methoxyimino) Acetyl} Amino]-8-oxo-3 - { (1,2,5,6 - Tetrahydro-2-Methyl-5,6 - dioxo - 1,2,4 -triazin-3-yI) thio} methyl] 5-thia-1-azabicyclo [4,5,0] octo-2-ene-2-carboxylic acid disodium salt" instead of its generic name viz. "Cetriaxone Sodium" which originated from China in order to evade Anti Dumping Duty (ADD). Scrutiny of similar imports made by the other importers was carried out by Special Intelligence and Investigation Branch (SIIB). It was noticed that identical goods were imported by M/s.MSK International, Chennai vide Bills of Entry dt. 18.2.2009, 11.4.2009 and 27.5.2009. On scrutiny of the details available in EDI system it was noticed that the country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared as the proprietor of MSK International in the IEC was residing in one of the flats of the said apartment. However, no incriminating documents were recovered from the premises. Shri Saravanan handed over the copies of all the Bills of entry filed in the name of M/s.MSK International, Chennai. Summons were issued by the department to Shri K. Saravanan who appeared before the department and in his voluntary statement dt. 30.09.2009, he stated interalia that he had applied and got IEC registration number in the name of 'MSK International' to start an import business, but he had not imported any goods; that as requested b his friends S/Shri Sivakumar and Sriram he agreed to the usage of the IEC code for the imports made under the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and imposition of penalties. After due process of law, the original authority rejected the price declared and re-determined the price at the rate of USD 87.50 (CIF) per kg and ADD @ USD 77.35 per kg. was also imposed on the aforementioned three Bills of Entry as per Notification No.98/2008-Cus. dt. 27.08.2008. Thus total differential duty of Rs. 1,47,28,161/- was confirmed along with interest and Rs. 28,33,472/- paid during investigation was appropriated. The adjudicating authority also held that the goods totally valued at Rs. 1,61,77,000 (AV) are liable for confiscation under Section 14 of the Drugs & Cosmetics Act, 1940 read with Section 111 (d) & 111 (m) of the Customs Act, 1962. However, since the goods are not available for confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed penalty under Section 114A on him for rendering the goods liable for confiscation; that penalty under Section 13 (b) of Drugs and Cosmetics Act, 1940 is not imposable by a customs authority as that provision relates to punishment for offences by a court of law. 5. On the other hand, Ld. A.R Shri B. Balamurugan supports the impugned order. He took note of the Ld. Advocate's submissions for enhancement of value and levy of ADD are not disputed. However, Shri Sujath Ali, Partner of K.S.R. Pharmacy was the kingpin of the entire modus operandi to import prohibited ‚Ceftriaxone Sodium‛ in the guise of its chemical name and also attempted to undervalue the goods. So also Shri K. Saravanan proprietor of MSK International has unlawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962 as applicable on the said Sujath Ali. However, penalty under Section 13 (b) of the Drugs and Cosmetics Act, 1940 read with Section 114A of the Customs Act, 1962. In this regard, we find merit in the Ld. Advocate's contention that the said Section 13 (b) relates to punishment for offences which are to be awarded by a court not inferior court of a Metropolitan Magistrate or of a Judicial magistrate of the first class as has been clearly laid down in Section 15 ibid. More importantly, Section 114A of the Customs Act, 1962 mandates penalty equal to duty or interest so determined only on the person who is liable to pay such duty or interest. In the present impugned order, duty / interest has not been demanded from Sujath Ali, Par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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